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November 09, 2004

U.S. judge halts military tribunal

A U.S. District Court judge has ruled that the U.S. military cannot prosecute Osama bin Laden's personal driver in a military tribunal. It's a detailed and interesting opinion that spans the areas of federal courts, military law, and the laws of war. In essence, the court concluded that because Salim Ahmed Hamdan was never stripped of POW status by a "competent tribunal" (as that term is used in the Geneva Convention), he could not be subject to a military tribunal -- the only forum in which to prosecute him would be a court martial, with the attendent guarantees of the Uniform Code of Military Justice.

Moreover, the court found fault with the provision of the military tribunal allowing the exclusion of Hamdan from certain sessions (generally, those in which classified information would be introduced against him). Thus, even if Hamdan were to be judged not deserving of POW status by a competent tribunal, any military tribunal to prosecute him would have to balance the need for national security against Hamdan's need to see the evidence against him. The judge pointed out that the Military Rules of Evidence in use in courts martial already contemplate such situations.

The federal courts issue is this: in Schlesinger v. Councilman, 420 U.S. 738 (1975), the Court held that federal courts should abstain from interfering with ongoing courts martial when the only injury the defendant could claim was the fact of having his case resolved in the military court system. The district judge in Hamdan argued that this case was different, because Hamdan was arguing that the court had no jurisdiction to try him at all. Perhaps that's right. But it seems to me that the second issue the judge reached (the exclusion of the defendant from certain sessions) does not fit into that category. In other words, suppose that the U.S. military convenes a "competent tribunal" and determines that Hamdan is not entitled to POW status. That would satisfy the first of the district judge's requirements. At that point, Councilman would appear to apply, and the district judge's injunctive relief would constitute interference with ongoing proceedings in another court system.

Were Hamdan to be convicted by a military tribunal (whatever procedures were used), he would be entitled to habeas review of that conviction by virtue of this summer's Rasul decision.